4 Jan 2017

Can the Parliament pass a
resolution condemning a former judge of the Supreme Court? Can the Parliament
condemn a person without offering an opportunity to such a person to defend its
views for which he is condemned? Can the Parliament discuss the conduct of a
‘stranger’ which is not relevant for its functioning and pass a resolution on
such conduct? These and many other interesting questions touching various aspects
of Parliamentary functioning came up for determination before the Supreme Court
recently.

Considering the writ petition
filed by its former judge, the Supreme Court has in its recent judgment in
Justice (Retd.) Markanday Katju versus Lok Labha and Another [Writ Petition(Civil) No. 504/2015, decision dated 16.12.2016] answered all the above
questions in the affirmative. Opining that the ambit of Parliamentary activity
is very wide and the members of the Parliament collectively enjoy the
constitutional protection of “freedom of speech in parliament”, the Supreme
Court has considered its earlier decisions on the subject of parliamentary
privileges to reiterate the scope of Parliamentary powers under the
Constitution. The impugned conduct of the former judge, on which the entire
chain of events arose, was noted in the judgment in the following terms;

“2. On 10.03.2015, the
petitioner, a former Judge of this Court published a post on his Facebook Page
in respect of Mahatma Gandhi, Father of the Nation. The post was entitled
“Gandhi – A British Agent” and stated that Mahatma Gandhi did great harm to
India. On the same date, another post was published by the petitioner on his
Facebook Page in respect of Netaji Subhash Chandra Bose referring to him as an
agent of Japanese fascism.”

This led both the
houses of the Indian Parliament to pass separate resolutions condemning the
former judge who viewed such resolutions as incorrect as being passed “without
giving him any opportunity of hearing and that rules of Natural Justice
required that he should have been given an opportunity of hearing”. This led to
the filing of the petition in the Supreme Court wherein it was stated “that it
does not seek any relief against any Member of Parliament individually but the
Resolutions in question do not fulfill jurisdictional requirement, and that
whether the statements are deplorable or condemnable can be judged only by
bodies performing judicial function and cannot be decided by Rajya Sabha or Lok
Sabha.”

The Supreme Court
examined the constitutional provisions relating to parliamentary functioning
and the ambit of its privileges the conclude upon the legal position on the
subject in the following terms;

21. The observations of
this Court in the aforesaid cases make it clear that “freedom of speech in
Parliament” is absolute and unfettered; that the freedom of speech so conferred
is subject only to such of the provisions of the Constitution which relate to
regulation of procedure in Parliament; that this is recognition of the fact that
Members need to be free of all constraints of what they say in Parliament; that
clause (2) of Article 105 puts negatively what clause (1) states affirmatively;
that both clauses must be read together to determine their content; that a
vote, whether cast by voice or gesture is an extension of speech or a
substitute for speech; that what has protection under these sub-Articles is
what has been said and a vote that has been cast; that the protection is broad,
being “in respect of”; that if the impugned speech amounts to libel or becomes
actionable or indictable under any provision of law, immunity has been
conferred from any action in any Court; and that the Constitution makers
attached so much importance to the absolute freedom in debates that they thought
it necessary to confer complete immunity on the legislators from any action in
any Court in respect of their speeches

…

24. In so far as
debates or discussion in the Houses of Parliament are concerned, the only
substantive restriction found in the Constitution is in Article 121 of the
Constitution which specifically mandates that no discussion shall take place in
Parliament in respect of the conduct of any Judge of the Supreme Court or of a
High Court in the discharge of his duties. Barring such provision under Article
121, the Constitution has placed no restriction on what can be debated or
discussed in Parliament. It is completely left to the wisdom or discretion of
the individual Houses and the presiding authorities in terms of the Rules of
Procedure of each House. It is for this reason that this Court in Keshav
Singh’s case(supra) observed that the “freedom of speech in
Parliament” is subject only to such provisions of the Constitution and to the
rules and standing orders regulating the procedure of Parliament.
Substantively, apart from Article 121, the Constitution itself places no
restriction on the subject matter of discussion or debate.

25. The history of
parliamentary privileges as found by this Court in the aforementioned cases
shows that the privileges have been defined as the sum of the fundamental
rights of the House and of its individual Members inter alia, as against the
prerogatives of the Crown and the authority of the ordinary courts of law, that
the term privilege denotes certain fundamental rights of each House which are
generally accepted as necessary for the exercise of its constitutional
functions, and that the privileges of Parliament are rights which are
absolutely necessary for the due execution of its powers. The privileges are
enjoyed by individual Members, because the House cannot perform its functions
without unimpeded use of the services of its Members, and by each House for the
protection of its Members and the vindication of its own authority and dignity.
The expression “...… there shall be freedom of speech in Parliament…….”
occurring in first clause of Article 105, is general in nature; not confined to
individual members and is applicable to all discussions and debates in
Parliament. Secondly, the fact that this privilege is available to strangers
who publish under the authority of either House of Parliament under sub-Article
(2) and to those who have a right to speak in, and otherwise take part in the
proceedings of a House of Parliament or any Committee thereof, is sufficient to
refute the argument that it is only an individual privilege of a member of the
House. All privileges belong to the House, though some of them may also protect
and shield individual members composing the house.”

Having concluded such,
the Supreme Court thereafter dwelled upon the factual dimensions relating to
the petition to opine that the cause therein was unsustainable in the following
terms;

“32. The submission of
the petitioner however is, when Parliament is claiming a privilege what is to
be considered is whether the act in respect of which privilege is claimed, is
fundamental to the functioning to the Parliament. It is submitted by the
petitioner that the power available with the Houses to deal with a stranger is
only in relation to such act of that stranger which interferes with the
functioning of the House and since the remarks of the petitioner did not in any
way impede or interfere with the proceedings of Parliament, it was not within
the jurisdiction of any of the Houses to take notice of such remarks and pass
the Resolutions in question.

…

34. If any action is
sought to be initiated against any citizen, whether Member or Non-Member,
either in exercise of contempt or breach of privilege, the law that has
developed is that the action of such citizen must have interfered with
fundamental functioning of the House so as to enable the House to initiate any
proceedings against the citizen. The petitioner is right that in cases
concerning breach of privilege or contempt such aspect whether the actions of
the citizen had interfered with the functioning of the Houses, is crucial and
fundamental. But in the present case no action for either breach of privilege
or contempt was initiated or exercised. Chapter 20 of Lok Sabha Rules entitled
Privileges and Rules 222 to 228 thereof deal with matters of privileges.
Similarly Rules 187 to 203 of Rajya Sabha Rules deal with issues
concerning privileges. If an action for breach of privilege was initiated, the
enquiry would certainly be on the lines submitted by the petitioner, in that
whether his remarks had in any way impeded or interfered with the functioning
of the Houses.

35. We are however
concerned in the present case with exercise of power in terms of Sub-clause (1)
of Article 105 which guarantees ‘freedom of speech in Parliament’ as against
the cases of the first kind mentioned in the present case is one under Article
105 (1) and (2) of the Constitution, without there being any layer of breach of
privilege. The question therefore is whether while exercising such power under
Article 105(1), is there any restriction on the scope and debate or discussion
in Parliament and whether acts of a citizen, whether Member or Non-Member,
could not be noticed or debated. As mentioned hereinabove, the only restriction
in the Constitution as regards subject matter of any debate or discussion is to
be found in Article 121 of the Constitution. It is axiomatic for the free
functioning of Houses of Parliament or Legislatures of State that the
representatives of people must be free to discuss and debate any issues or
questions concerning general public interest. It is entirely left to the
discretion of the Presiding Officer to permit discussion so long as it is
within the confines of Rules of Procedure.

36. We now deal with
the concerned Rules and the Resolutions in question. Rule 156 of Rajya Sabha
Rules quoted hereinabove shows that a resolution could relate to a matter of
general public interest and under Rule 155 a resolution could be in the form of
a declaration of opinion by Rajya Sabha. Under Rule 157 certain conditions are
specified, inter alia that the resolution shall not refer to the conduct
or character of persons except in their official or public capacity. Rules 171,
172 and 173 of Lok Sabha Rules are also on similar lines. Resolution dated 11th
March, 2015 passed by Rajya Sabha expressed “unequivocal condemnation of the
recent remarks” of the petitioner against Mahatma Gandhi and Netaji Subhash
Chandra Bose. Similarly resolution dated 12th March, 2015 passed by Lok Sabha
condemns the statement of the petitioner relating to Mahatma Gandhi and Netaji
Subhash Chandra Bose. The condemnation by both the Houses was of the opinion
and remarks and did not refer to the conduct or character of the petitioner.
These resolutions were purely in the form of declaration of opinion. Both the
resolutions made reference to the offices held by the petitioner as a Judge of
this Court and Chairman of the Press Council and show that both Houses were
conscious of the fact that the remarks about Mahatma Gandhi and Netaji Subhash
Chandra Bose were made not by an ordinary person but by one who had occupied
high public office. In the context of such remarks from a person of the stature
of the petitioner, which were put in public domain, if both Houses thought it
fit to pass resolutions in the form of a declaration, it was certainly within
their competence. The nature of remarks regarding Mahatma Gandhi and Netaji
Subhash Chandra Bose pertain to general public interest and as such the Houses
were certainly within their jurisdiction to pass resolutions.

37. It is not as if any
action was deliberately undertaken or sanction was issued against the
petitioner. The petitioner in exercise of his right under Article 19(a) made
certain statements concerning two famous personalities. We are not for a moment
suggesting that he could not or sought not to have made those statements. He is
entitled to his views and put those views in public domain for consumption of
public in general. The response by both Houses of Parliament was also natural in
that the Resolutions in question dealt with his statements in public domain.
All that the resolutions did was to condemn his remarks and did not refer to
the conduct or character of the petitioner. As stated earlier, the remarks made
by the petitioner regarding Mahatama Gandhi and Netaji Subhas Chandra Bose,
which were in public domain, were touching subject of general public interest
and as such could well be discussed in the Houses. The learned Attorney General
is right in submitting that the resolutions had no civil consequences in so far
as the conduct and character of the petitioner is concerned. Unlike all the
cases referred to herein above which visited upon the concerned individual
certain civil consequences, the present resolutions do not inflict any penalty
or visit the petitioner with any civil consequences.

…

39. According to the
petitioner, a stranger who makes a speech outside the House, not connected with
the functioning of the Parliament and not derogatory to Parliament, could not
be taken notice of by Parliament to punish him. The power to punish a stranger,
if his acts in any way impede or interfere with functioning of Parliament, will
certainly entitle Parliament to initiate action for breach of privilege or in
contempt. Such limitation is definitely read into the exercise of power for
breach of privilege or contempt. However, such limitation or restriction cannot
be read in every debate. A pure and simple discussion or debate may touch upon
or deal with a stranger.

As stated above,
freedom of speech in Parliament is subject only to such of the provisions of
the Constitution which relate to regulation of procedure in Parliament. No
separate law is required to confer jurisdiction to deal with the opinions
expressed by individuals and citizens during debates. If the nature of opinions
expressed by such citizens or individuals pertain to matters of general public interest,
it would certainly be within the powers of the House to have a discussion or debate
concerning such opinions. So long as the debate or discussion is within the
confines of the Rules, it will be expressly within the powers of the House to
disapprove such opinions.

No restriction is
placed by the Constitution or the Rules of Procedure and none can be read in
any of the provisions. It is true that a citizen or an individual may find
himself in a situation where he has no way to reply to the discussion or a
resolution passed by the concerned House. The concerned individual or citizen
may also find himself in a position where the resolution is passed without
giving him any opportunity of hearing. This definitely is a matter of concern
and has engaged attention of the concerned in some countries.”

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